LAKHU Vs. SAINA DEVI

JUDGEMENT

(1.) ON 15.7.2009, it was brought to the notice of the Court that appellant No.1, had died on 2.11.2007. No steps have been taken for bringing on record legal representatives of appellant No.1. The learned counsel for the appellants has submitted that no doubt, appellant No.1 has died on 2.11.2007 and his legal representatives have not been brought on record, but in view of nature of case, the appeal has not abated. This stand has been refuted by learned counsel for respondents No. 1 to 8, who submitted that since legal representatives of appellant No.1, died on 2.11.2007, have not been brought on record, the abatement of appeal is automatic, it requires no separate order and since legal representatives of appellant No.1 have not been brought on record within the stipulated period and after taking into consideration further stipulated period for setting aside the abatement, the appeal stands abated in absence of requisite steps taken by the appellants.

(2.) IN the context of submissions made by the learned counsel for the parties, it is necessary to refer to the nature of the suit, out of which the present appeal has arisen. Om Parkash, predecessor-in- interest of respondents No.1 to 6 had filed a suit for declaration with consequential relief of injunction that the order dated 19.12.1990 passed by Sub Divisional Collector, Joginder Nagar is null and void to the extent, it holds sum due under the mortgage with further declaration that the plaintiff and proforma defendants No. 11 to 17 are entitled to redeem the suit land for a sum of Rs. 800/, which stands already deposited with Sub Divisional Collector, Joginder Nagar. Lakhu and Chanan defendants No. 1 and 2 contested the suit and prayed for dismissal of the suit. It is not necessary to give details of defence of defendants No. 1 and 2 in view of limited controversy involved regarding the abatement of appeal.

(3.) IN the context of declaration given by the trial court and affirmed by the lower appellate court, the question of abatement of present appeal on account of death of appellant No.1 Lakhu is to be considered. The legal representatives of appellant No.1 have not been brought on record. The learned counsel for the appellants has submitted that the appeal has not abated in absence of legal representatives of appellant No.1 and in support of this submission, he has relied Shiv Ram and others versus Bhagat Ram and others, (1978) I.L.R. H.P., 158.